Joseph Mulligan - Georgia - May 15,
Joseph Mulligan became friends with Timothy A. Helms while Helms was
stationed with the United States Marine Corps in Beaufort, South
On April 12, 1974, Mulligan talked Helms into driving
him to Columbus, Georgia, by offering Helms a fee of $1000. During
the drive, Mulligan told Helms that he was going to Columbus, to
"ice somebody." In accordance with Mulligan's suggestion, the two
spent the night of April 12-13 at a hotel in Columbus registered
under false names.
The next day, Mulligan and Helms visited with Patrick
A. Doe, an army captain at Fort Benning and Mulligan's
brother-in-law. In the afternoon, they joined Capt. Doe in washing
his car. During this activity, Mulligan and Capt. Doe argued.
That evening, with Mulligan and Helms sitting in the
back seat (Mulligan seated directly behind the driver's seat), Capt.
Doe drove to the house of Marian Jones Miller, the captain's
girlfriend, to pick her up for a party. When Capt. Doe left the car
to get Ms. Miller, Mulligan announced to Helms that he would "do it
in the next two blocks."
Following Captain Doe's return to the driver's seat
and shortly after the car had begun to move again, Mulligan held a
.38 special automatic in a .45 frame, which Mulligan had earlier
borrowed from the captain, to the captain's head. Mulligan fired
He then ordered Helms to grab the now-abandoned
steering wheel, but Helms was unable to do so before the car had
struck both a stop sign and a mail box. When Ms. Miller, who was
seated in the front seat next to Captain Doe, cried out for help,
Mulligan placed the gun across Helms' back and shot Ms. Miller as he
told her to be silent.
After Helms finally brought the car to a stop,
Mulligan and Helms towelled it off for fingerprints and then ran. As
they fled the scene of the crime, Helms threw away his bloody shirt
and the wallet which he had removed from the body of Capt. Doe.
Mulligan threw Captain Doe's gun into some bushes and his own
clothes over a bridge.
The autopsy performed on Capt. Doe showed that the
bullet had entered the left eye, traveled through the brain, and
exited the right temple.
The autopsy of Ms. Miller revealed that she had been
shot four times: in the left forearm, the left shoulder, the right
upper arm, and the midportion of the back of the skull, with the
exit wound of the last listed shot being the right eye.
The cause of death for both victims was laceration
and hemorrhage of the brain and cerebral trauma.
Several .38 shell casings were found in the captain's
car along with a bullet. The State Crime Laboratory test indicated
that the shell casings and the bullet found in Capt. Doe's car had
been fired by Capt. Doe's .38 pistol. Finally, a latent fingerprint
which had been lifted from the left door window of Captain Doe's car
was found to match a rolled print of Mulligan's left middle finger.
The evidence also revealed that Captain Doe had filed
a divorce action against Mulligan's sister and that Captain Doe had
told Mulligan on the day of the murders, that his divorce from
Mulligan's sister would be final soon.
Georgia man executed after
appeal to High Court
The New York Times
May 16, 1987
Joseph Mulligan, who was convicted of killing a witness to a murder
he committed for the insurance money, died this evening in Georgia's
Mr. Mulligan died at 7:25 P.M., said John Siler,
a spokesman for the Department of Corrections.
The United States Supreme Court had earlier voted
7 to 2 to reject an emergency request to postpone Mr. Mulligan's
execution and a formal appeal challenging his conviction and death
sentence. Only Justices William J. Brennan and Thurgood Marshall,
who oppose capital punishment under all circumstances, voted to
spare the prisoner's life.
Before he died, Mr. Mulligan visited with his
father, his brother, a cousin and his lawyers at the state prison
for more than five hours. Other Conviction Overturned
Mr. Mulligan, 35 years old, was sentenced to die
for killing Marion Jones Miller in Columbus on Easter morning in
1974. A death sentence for the slaying the same day of Mr.
Mulligan's brother-in-law, Capt. Patrick Doe of the Army, was
overturned by state courts.
Prosecutors said Mr. Mulligan killed Captain Doe,
the estranged husband of Mr. Mulligan's sister, to collect on a life
insurance policy, and he killed Mrs. Miller to eliminate a witness.
Mr. Mulligan's appeals were based on claims of
various errors by the trial judge and prosecutor, including failure
to make it clear that the jury had sole responsibility for imposing
the death sentence.
Much of the prosecution's case rested on the
testimony of Timothy Helms, who was granted immunity in return for
testifying that Mr. Mulligan shot Captain Doe once in the head and
Mrs. Miller four times.
Mr. Mulligan maintained that he was not guilty.
He said he was on a bus traveling from Atlanta to Savannah when the
MULLIGAN v. THE STATE.*
245 Ga. 266,
264 S.E.2.d 204
Court of Georgia
Murder, etc. Muscogee Superior Court. Before
Joseph Holcombe Mulligan, was co-indicted with
Timothy Andrew Helms in Muscogee County in
August of 1974 for the murders of Patrick A. Doe
and Marian Jones Miller, and for theft by taking.
Following a jury trial, the appellant was found
guilty on all counts and sentenced to death for
each murder and to thirty days for theft by
taking. The case is presently before this court
on appeal and mandatory review of the death
I. The Evidence.
A summary of the evidence is
The appellant became friends
with Timothy A. Helms, his co-indictee, while
the latter was stationed with the United States
Marine Corps in Beaufort, South Carolina. On
April 12, 1974, the appellant talked Helms into
driving him to Columbus, Georgia, by offering
Helms a fee of $1,000. During the drive, the
appellant told Helms that he was going to
Columbus, to "ice somebody."
In accordance with the
appellant's suggestion, the two spent the night
of April 12-13 at a hotel in Columbus registered
under false names. The next day, the appellant
and Helms visited with Patrick A. Doe, an army
captain at Fort Benning and the appellant's
brother-in-law. In the afternoon, they joined
Captain Doe in washing the latter's car. During
this activity, the appellant and Captain Doe
That evening, with the
appellant and Helms sitting in the back seat (the
appellant seated directly behind the driver's
seat), Captain Doe drove to the house of Marian
Jones Miller, the captain's girlfriend, to pick
her up for a party. When Captain Doe left the
car to get Ms. Miller, the appellant announced
to Helms that he would "do it in the next two
Following Captain Doe's
return to the driver's seat and shortly after
the car had begun to move again, the appellant held a .38 special
automatic in a .45 frame, which the appellant
had earlier borrowed from the captain, to the
captain's head. The appellant fired once. He
then ordered Helms to grab the now-abandoned
steering wheel, but Helms was unable to do so
before the car had struck both a stop sign and a
mail box. When Ms. Miller, who was seated in the
front seat next to Captain Doe, cried out for
help, the appellant placed the gun across Helms'
back and shot Ms. Miller as he told her to be
After Helms finally brought
the car to a stop, the appellant and Helms
towelled it off for fingerprints and then ran.
As they fled the scene of the crime, Helms threw
away his bloody shirt and Captain Doe's wallet
which he had removed from the body of Captain
Doe at the appellant's instruction. Similarly,
the appellant threw Captain Doe's gun into some
bushes and his own clothes over a bridge.
The autopsy performed on
Captain Doe showed that the bullet had entered
the left eye, traveled through the brain, and
exited the right temple. The autopsy of Ms.
Miller revealed that she had been shot four
times: in the left forearm, the left shoulder,
the right upper arm, and the midportion of the
back of the skull, with the exit wound of the
last listed shot being the right eye. The cause
of death for both victims was laceration and
hemorrhage of the brain and cerebral trauma.
Several .38 shell casings
were found in the captain's car along with a
bullet. The State Crime Laboratory test
indicated that the shell casings and the bullet
found in Captain Doe's car had been fired by
Captain Doe's .38 pistol. Finally, a latent
fingerprint which had been lifted from the left
door window of Captain Doe's car was found to
match a rolled print of the appellant's left
The evidence also revealed
that Captain Doe had filed a divorce action
against the appellant's sister and that Captain
Doe had told the appellant on the day of the
captain's death, that his divorce from the
appellant's sister would be final soon.
This court holds that the
evidence in support of the verdicts is legally
sufficient since the evidence more than supports
a reasonable jury's finding that the appellant
was guilty beyond a reasonable doubt of each and
every crime charged.
II. Enumerations of Error.
1. The appellant first
enumerates as error the trial court's failure to
charge the jury that they could consider
mitigating circumstances and recommend a life
sentence even though they found the existence of
a statutory aggravating circumstance beyond a
In Fleming v. State,
240 Ga. 142 (240 SE2d 37)
(1977), this court noted that the
trial court has a duty to make clear to the jury
that "our system for deciding whether a death
sentence is to be given requires the jury to
consider two issues in the sentencing phase.
First, the jury must consider if the state has
proven the existence of at least one statutory
aggravating circumstance (Code Ann. 27-2534.1
(b)(1-10)), beyond a reasonable doubt. Second,
if one of these circumstances is found, the jury
must then consider the mitigating and
aggravating circumstances relevant to the
defendant and determine whether the death
penalty is appropriate in this case." Id., at
We have carefully reviewed
the trial judge's charge [see T. 269-272] to the
jury during the sentencing phase of the
appellant's trial and conclude that the trial
judge fully met his duty of making clear to the
jury that they could sentence the appellant, not
to death, but to life imprisonment, even though
they found the existence of a statutory
aggravating circumstance beyond a reasonable
doubt. The appellant's first enumeration of
error is without merit.
2. The appellant also
enumerates as error the trial court's failure to
hold the Georgia Death Penalty Procedure (Code
Ann. 27-2534.1) unconstitutional as a cruel and
unusual mechanism for the award of the death
penalty in violation of the Eighth Amendment to
the United States Constitution. Specifically,
the appellant argues that an arbitrary and
capricious system for awarding the death penalty
can be avoided only when the trial judge, and
not the jury, decides whether the sentence shall
be death or life in prison.
The United States Supreme
Court, in Gregg v. Georgia, 428 U. S. 153
(1976), held that the Georgia Death Penalty
procedure effectively obviated that court's
concern that the death penalty not be imposed in
an arbitrary and capricious manner, and
specifically noted that "while some jury
discretion still exists, 'the discretion to be
exercised is controlled by clear and objective
standards so as to produce non-discriminatory
application.' " Id., at 197, 198.
Further, that court noted in
the same case that " Jury sentencing has been
considered desirable in capital cases in order 'to
maintain a link between contemporary community
values and the penal system -- a link without
which the determination of punishment could
hardly reflect "the evolving standards of
decency that mark the progress of a maturing
society." ' " Id., at 190.
The appellant's second
enumeration of error is without merit.
3. The appellant complains
that the verdict is not supported by the
evidence in the specific sense that the
appellant was convicted on the basis of the
uncorroborated testimony of a co-conspirator.
Code Ann. 38-121 provides
that, while the testimony of a single witness is
generally sufficient to establish a fact, in any
case of a felony where the only witness is an
accomplice, corroborating circumstances must
also be proven.
"Under 38-121, testimony
which concerns the identity of other
participants must be corroborated by some means
independent of the testimony of the accomplice.
One who is guilty of a crime in which he
participated will always be able to relate the
facts of the case and if the corroboration goes
only to the truth of that history, without
identifying the person accused, it is really no
corroboration at all." Birt v. State,
236 Ga. 815, 824 (225
SE2d 248) (1976). (Emphasis supplied.)
Accordingly, under Code Ann.
38-121, evidence must be presented at trial
which corroborates the accomplice's testimony
both as to the history of the felony and as to
the identification of the accused as a
participant in the crime, and, as regards the
latter corroboration, the evidence must
originate from an independent source.
Finally, the standard of
review regarding corroboration is as follows:
"It is not required that the corroboration shall
of itself be sufficient to warrant a verdict, or
that the testimony of the accomplice be
corroborated in every material particular [and]
. . . slight evidence from an extraneous source
identifying the accused as a participator in the
criminal act will be sufficient corroboration of
the accomplice to support a verdict." Birt,
supra, at 826.
Having thoroughly reviewed
the present appellate record, we hold that the
testimony of Timothy A. Helms, the appellant's
accomplice, regarding the history of the
appellant's crimes, is amply corroborated by
other evidence. Further, Helms' testimony as to
appellant's identity and participation in the
present crimes is independently corroborated by
the testimony of three witnesses who saw the
appellant in the company of Captain Doe on the
afternoon and evening of the day of the shooting,
and, by the appellant's latent fingerprint which
was lifted from the left door window of the
victim's car. Cf. Birt, supra, at 825.
4. Finally, the appellant
complains that the trial court violated Code
Ann. 27-2534.1 by not presenting to the jury, in
writing, a copy of the court's entire charge
Code Ann. 27-2534.1 (c)
provides as follows: "The statutory instructions
as determined by the trial judge to be warranted
by the evidence shall be given in charge and in
writing to the jury for its deliberation."
In the present case, the
trial court gave to the jury, for its
consideration as to punishment, a written list
of the statutory aggravating circumstances which
the trial court had orally charged. Code Ann.
27-2534.1 (c) demands nothing more. Spraggins v.
243 Ga. 73, 75 (252
SE2d 465) (1979).
The appellant's final
enumeration of error is without merit.
III. Death Sentence Review.
In recommending the death
penalty as to Count 1 of the indictment, which
charged appellant with the murder of Patrick A.
Doe, the jury found the following aggravating
"The offense of murder was
outrageously and wantonly vile, horrible and
inhuman." Code Ann. 27-2534. 1 (b) (7).
While partial findings of
this particular aggravating circumstance have
been affirmed on appeal, in this case the judge
did not charge Code Ann. 27-2534.1 (b)(7) as an
aggravating circumstance as to Count 1 of the
indictment. Godfrey v. State,
243 Ga. 302 (253 SE2d 710)
(1979); Ruffin v. State,
243 Ga. 95 (252 SE2d 472)
(1979). Rather, the trial court
charged that the jury could only consider as an
aggravating circumstance that the "offender
committed the offense of murder for himself or
another for the purpose of receiving money or
any other thing of monetary value." Code Ann.
27-2534.1 (b) (4).
As to Count 1 of the
indictment we conclude that the evidence does
not support a finding of Code Ann. 27-2534.1 (b)
(7) or (4) as an aggravating circumstance.
Harris v. State,
237 Ga. 718 (230 SE2d 1)
(1976); see Banks v. State,
237 Ga. 325 (227 SE2d 380)
(1976); Holton v. State,
243 Ga. 312 (253 SE2d 736)
(1979). Therefore, as to Count 1 of
the indictment, the sentence of death is vacated
and the case remanded with direction that a
sentence of life imprisonment be imposed.
In recommending the death
penalty as to Count 2, the murder of Ms. Miller,
the jury found the following statutory
(1) The offense of murder
was committed while the offender was engaged in
the commission of another capital felony to wit:
the murder of Patrick A. Doe. (Code Ann.
27-2534.1 (b) (2); and (2) The offense of murder
was outrageously or wantonly vile, horrible or
inhuman in that it involved torture and
depravity of mind. The evidence supports the
jury's findings of these two statutory
Further, this court finds
that the sentence of death imposed in Count 2
was not imposed under the influence of passion,
prejudice or any other arbitrary factor.
We find also, that the trial
court's instructions to the jury during the
sentencing phase of the trial are not subject to
the defects addressed in Hawes v. State,
240 Ga. 142 (240 SE2d 37)
Finally, we have considered
the cases appealed to this court since January
1, 1970, in which death or life sentences were
imposed and find the similar cases listed in the
appendix support the affirmance of the death
penalty in this case. Joseph H. Mulligan's
sentence to death is not excessive or
disproportionate to the penalty imposed in
similar cases considering both the crime and the
Westbrook v. State,
242 Ga. 151 (249 SE2d 524)
(1978); Alderman v. State,
231 Ga. 494 (202 SE2d 441)
(1973); Morgan v. State,
231 Ga. 280 (201 SE2d 468)
(1973); Mitchell v. State,
234 Ga. 160 (214 SE2d 700)
(1975); Dobbs v. State,
236 Ga. 427 (224 SE2d 3)
(1976); Birt v. State,
236 Ga. 815 (225 SE2d 248)
(1976); Douthit v. State,
239 Ga. 81 (235 SE2d 493)
(1977); Gaddis v. State,
239 Ga. 238 (236 SE2d 594)
(1977); Stanley v. State,
240 Ga. 341 (241 SE2d 173)
(1977); Thomas v. State,
240 Ga. 393 (242 SE2d 1) (1977).
771 F.2d 1436
Joseph MULLIGAN, Petitioner-Appellant,
Ralph KEMP, Warden, Georgia Diagnostic and Classification
Center, Respondent- Appellee.
United States Court of Appeals,
Sept. 4, 1985.
Appeals from the United States
District Court for the Middle District of Georgia.
Before ANDERSON and CLARK,
Circuit Judges, and DUMBAULD,
R. LANIER ANDERSON, III,
Joseph Mulligan, a state
prisoner under sentence of death, appeals the decision of the
United States District Court for the Middle District of Georgia
denying his petition for a writ of habeas corpus. We affirm.
I. PROCEDURAL BACKGROUND
Joseph Mulligan was tried for
two counts of murder in the Superior Court of Muscogee County,
Georgia. Trial testimony revealed that he had journeyed from
South Carolina to Columbus, Georgia, in 1974 and, with the help
of Timothy Helms, killed Patrick Doe and Marian Miller on April
14, 1976. On November 4, 1976, he was found guilty of both
murders by the trial jury and sentenced to death.
The Georgia Supreme Court
reversed Mulligan's death sentence for the murder of Doe, but
affirmed the sentence imposed for Miller's death. Mulligan v.
State, 245 Ga. 266, 264 S.E.2d 204 (1980). The Supreme Court of
the United States denied his petition for writ of certiorari.
Mulligan v. Georgia, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250
(1980). Mulligan then sought habeas corpus relief in the Georgia
state courts, but was unsuccessful. A second petition for writ
of certiorari was denied by the U.S. Supreme Court. Mulligan v.
Zant, 454 U.S. 1068, 102 S.Ct. 618, 70 L.Ed.2d 603 (1981).
The instant habeas corpus
action, brought pursuant to 28 U.S.C.A. Sec. 2254, was filed on
January 18, 1982. In his petition, Mulligan raised twelve
separate constitutional issues.
The district court did not develop the record by holding an
evidentiary hearing, but it did allow the parties to take
depositions on the ineffective assistance of counsel claim. The
petition was denied on May 17, 1982 in an order that explicitly
discussed only the ineffective assistance claim.
Mulligan raises only two
issues in his appeal of the district court's order. First, he
argues that his trial counsel was ineffective at both the guilt
and sentencing phases of his trial due to an inexcusable lack of
pre-trial investigation. Second, he claims that the prosecutor's
closing statements were so improper that they rendered both the
guilt and sentencing phases fundamentally unfair. We consider
each issue below.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Mr. Jay Fitt was appointed by
the trial court to represent Mulligan in his capital trial. Fitt
was an experienced criminal defense attorney, having served as
counsel for between 75 and 100 defendants. The Mulligan case was
the first case to be tried in the Columbus area under a new
Georgia capital sentencing statute.
When Fitt first contacted
Mulligan, the appellant insisted that he had not been in
Columbus on the day of the crime, but had been with his family
in Beaufort, South Carolina. Fitt explained to Mulligan that a "family
alibi" is not often persuasive, and would probably result in a
conviction, but Mulligan was adamant. Immediately thereafter,
the prosecutor, Mr. Mullins Whisnant, indicated his willingness
to recommend a life sentence if Mulligan would plead guilty.
Once again, Fitt explained this to his client and told him that
a plea would be "a safe way to go if there was any danger at all
of ... being convicted." Fitt Deposition at 15. Mulligan was
adamant that he did not commit the crime and would not plead
After Mulligan rejected the
plea bargain, Fitt travelled to South Carolina to interview
potential alibi witnesses. He spoke with many family members and
they all corroborated Mulligan's story. Fitt was convinced by
their assertions and felt that he could put up a strong defense.
He intended to call these family members as witnesses at trial
and also planned, in the eventuality of a guilty verdict, to
have them testify at the sentencing stage about Mulligan's
Fitt talked to the prosecutor
about the state's witnesses, and knew that the state was going
to produce several eyewitnesses to testify that Mulligan was in
Columbus at the time of the murder. He asked the prosecutor to
put the witnesses in touch with him, but did not make any
additional effort to speak with the witnesses before trial. From
his conversations with the prosecutor, Fitt knew that two
captains and a lieutenant from Fort Benning would be available
to testify that they saw Mulligan on the morning of April 13,
1976 helping Patrick Doe wash his Lincoln Continental, and that
Mulligan had been brandishing a gun. Fitt knew that he would
have to "mak[e] those people out to be either mistaken or to be
liars...." Fitt Deposition at 20.
In addition, he did not speak
with Timothy Helms, Mulligan's accomplice who had been given
immunity from prosecution and whom he knew would provide direct
testimony that Mulligan shot the victims. Fitt explained this
failure by claiming that Helms was not in the Columbus area
before trial; however, he did not move for a continuance or
otherwise demonstrate any hesitation to proceed once Helms
appeared at the trial.
Rather, he trusted his ability
to damage Helms' credibility with the jury because of the grant
of immunity. Finally, Fitt turned down an offer by the
prosecutor to provide him with the government's list of
witnesses, apparently believing that he already knew who the
witnesses were and that his strategic choice to pursue the alibi
defense did not require further investigation of the state's
At trial, Fitt made serious
attempts in cross-examination to undermine eyewitness accounts
that placed Mulligan in Columbus, Georgia. The eyewitnesses were
completely certain, however, and did not equivocate during
Fitt's questioning. Fitt also cross-examined Timothy Helms at
length, bringing out some minor conflicts between his trial
testimony and a previous written statement and exploring the
effect of the grant of immunity upon his credibility as a
The crucial moment in the
trial occurred when the state called David Rice, a fingerprint
expert, as its last witness. Immediately after Rice asserted
that Mulligan's fingerprints had been found in the car where the
victims' bodies were discovered, Fitt approached the bench and
objected to the testimony because he had not been told that the
witness was going to appear. In the presence of the jury, the
prosecutor explained that Fitt had said he was not interested in
the state's witness list. This argument continued for a short
time before Fitt asked for the jury to be excused. The court
then ruled that because Fitt had not made a formal demand for
the state's witness list, his objection to Rice's testimony
would not be sustained.
Following this colloquy, Fitt
returned to counsel table. Mulligan leaned over to him and said
"I didn't tell you the truth." This remark placed Fitt in an
impossible position vis-a-vis the planned alibi defense.
Although he had explained in his opening statement that Mulligan
and his family members would testify that Mulligan was in South
Carolina, he now knew that the alibi was untrue. He therefore
decided not to put on any witnesses in defense. Instead, he
stressed in closing argument the incredibility of Helms'
testimony and suggested that he, rather than Mulligan, may have
been the principal assailant.
At the sentencing stage,
Fitt's original plan was to have family members testify about
Mulligan's character. However, following the revelation that
these family members might lie about where Mulligan was on the
day of the crime (communicated to the jury's by Fitt's opening
statement, which explained that they would testify in support of
the alibi), Fitt concluded that testimony of family would not
help Mulligan avoid a capital sentence. Instead, he decided that
"we might get a lot more mileage out of ... just arguing the
issue of the death penalty from an emotional point of view."
Fitt Deposition at 45. Aside from Fitt's closing argument, there
was no evidence introduced for the defendant at sentencing.
B. Legal Standard
The Sixth Amendment guarantees
to criminal defendants the right to "adequate legal assistance."
Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64
L.Ed.2d 333 (1980). Claims that defense counsel's efforts fell
below the standard of adequacy constitutionally required,
commonly called "ineffective assistance" claims, are governed by
the standards recently set forth in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
In order to prevail, a
defendant must first show that counsel's efforts fell "outside
the wide range of professionally competent assistance." Id. at
----, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. This standard
demands deference to choices made by the trial attorney. Id. at
----, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. If a defendant makes
the initial showing, he must then show that "there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Id. at ----, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. If both
prongs of the test are met, relief will be granted.
Concerning the analysis of
attorney competence, the protections of the Sixth Amendment
necessarily extend to counsel's activities before trial, when "consultation,
thorough going investigation and preparation [are] vitally
important." Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59,
77 L.Ed. 158 (1932). This circuit has held that "[i]nformed
evaluation of potential defenses to criminal charges and
meaningful discussion with one's client of the realities of his
case are cornerstones of effective assistance of counsel."
Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978).
The evaluation of whether an
attorney has adequately conducted pre-trial investigation is
complex, depending upon such factors as "the number of issues in
the case, the relative complexity of those issues, the strength
of the government's case, and the overall strategy of trial
counsel." Washington v. Strickland, 693 F.2d 1243, 1251 (5th
Cir. Unit B 1982) (en banc), rev'd, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
Further complicating the
inquiry is the need to evaluate the effectiveness of pre-trial
actions from the standpoint of what was possible at the time
rather than from the omniscient perspective made possible by a
reviewing court's awareness of how the case was ultimately
resolved. Strickland v. Washington, 466 U.S. at 668, 104 S.Ct.
at 2065, 80 L.Ed.2d at 694 ("A fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight ..."). See Washington v.
Watkins, 655 F.2d 1346, 1356 (5th Cir. Unit A September 14,
1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d
474 (1982). With these general principles in mind, we now
examine Mulligan's particular claim.
This case presents an unusual
situation in the continually evolving body of case law defining
effective assistance of counsel. Unlike other cases concerning
the adequacy of pre-trial investigation, Fitt's assistance does
not involve a complete lack of preparation. See, e.g., Kemp v.
Leggett, 635 F.2d 453 (5th Cir. Unit B Jan. 27, 1981) (counsel
performed no pre-trial investigation); Gaines v. Hopper, 575
F.2d 1147 (5th Cir.1978) (counsel failed to interview any
Fitt was appointed at least
two months before trial. He had numerous contacts with his
client, discussed the case frequently with the prosecutor,
presented an opportunity for his client to plead guilty and
receive a life sentence, investigated an alibi defense, and
prepared witnesses for trial and sentencing testimony. Nor does
this case involve the occasional situation in which an attorney
explicitly disregards the client's stated defense to the
criminal charge. See Gomez v. Beto, 462 F.2d 596 (5th Cir.1972)
(client notified attorney of alibi witnesses, but attorney
refused to interview them or present alibi defense at trial).
In this case, Fitt made
significant efforts to shake Mulligan's reliance on the alibi
defense, but the persistence of his client and the
persuasiveness of the family members' proposed testimony
ultimately convinced him of the validity of the defense. Thus,
the strategy was to present the alibi defense which Mulligan had
conveyed to Fitt.
The question raised in this
case is whether Fitt's failure to formally request a witness
list or interview those state witnesses he did know about--actions
which would have revealed the strength of eyewitness testimony
as well as testimony of a fingerprint expert placing the
defendant at the murder scene--constituted ineffective
assistance of counsel in light of Mulligan's misrepresentations
and the other circumstances of the case.
1. Choice to Pursue the Alibi
Defense: At the start, we note that a defendant's Sixth
Amendment rights are his alone, and that trial counsel, while
held to a standard of "reasonable effectiveness," is still only
an assistant to the defendant and not the master of the defense.
See Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525,
2533, 45 L.Ed.2d 562 (1975).
Our criminal system allows a
defendant the choice of whether he wants to be represented by
counsel at trial. See generally Faretta. Because we recognize
that a defendant must have this broad power to dictate the
manner in which he is tried, it follows that, in evaluating
strategic choices of trial counsel, we must give great deference
to choices which are made under the explicit direction of the
client. The Court in Strickland v. Washington said:
The reasonableness of
counsel's actions may be determined or substantially influenced
by the defendant's own statements or actions. Counsel's actions
are usually based, quite properly, on informed strategic choices
made by the defendant and on information supplied by the
In particular, what
investigation decisions are reasonable depends critically on
such information. For example, when the facts that support a
certain potential line of defense are generally known to counsel
because of what the defendant has said, the need for further
investigation may be considerably diminished or eliminated
altogether. And when a defendant has given counsel reason to
believe that pursuing certain investigations would be fruitless
or even harmful, counsel's failure to pursue those
investigations may not later be challenged as unreasonable.
In short, inquiry into
counsel's conversations with the defendant may be critical to a
proper assessment of counsel's investigation decisions, just as
it may be critical to a proper assessment of counsel's other
litigation decisions. See United States v. Decoster, 624 F.2d ,
at 209-10 [D.C.Cir.1976].
466 U.S. at ----, 104 S.Ct. at
2066-67, 80 L.Ed.2d at 695-96. This is not to say that an
attorney has no professional independence to act without the
explicit permission of his client. Rather, if he is commanded by
his client to present a certain defense, and if he does
thoroughly explain the potential problems with the suggested
approach, then his ultimate decision to follow the client's will
may not be lightly disturbed.
In this case, Mulligan
insisted from the start that he was not guilty of the murders.
Fitt informed him that a "family alibi" defense was weak and
that it would likely result in a conviction. Fitt strongly
advised him to accept the plea bargain "if there is any chance"
of being convicted. Mulligan knew that the state would present
eyewitnesses placing him in Georgia and that Helms would testify
against him. Still, he held on to his alibi and insisted upon
his innocence. Fitt was not required to pressure Mulligan any
In light of the foregoing and
the apparent persuasiveness of the witnesses who said they would
corroborate Mulligan's alibi, the choice to proceed with the
alibi defense was a reasonable one. See Dixon v. Balkcom, 614
F.2d 1067, 1068 (5th Cir.1980) ("While constitutionally
effective counsel must make an informed evaluation of possible
defenses and have a meaningful discussion of the reality of the
case with his client, in light of [the client's] directions
these requirements were met").
2. Investigation of the Alibi
Defense: Even though we accept Fitt's strategic choice of the "family
alibi" defense, we must still determine whether, having chosen
it, he conducted a reasonable investigation of that defense.
Strickland v. Washington, 466 U.S. at ----, 104 S.Ct. at 2066,
80 L.Ed.2d at 695. Such an investigation has been held to
include " 'an independent examination of the facts,
circumstances, pleadings and laws involved.' " Rummel v.
Estelle, 590 F.2d 103, 104 (5th Cir.1979), quoting Von Moltke v.
Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309
The extent of Fitt's
investigation is clear from the record. He consulted with
Mulligan, talked to the prosecutor, and interviewed and prepared
defense witnesses. He did not attempt to interview the state
witnesses of whom he was aware, although from his discussions
with the prosecutor, he assumed that he knew the substance of
their testimony. His assumption was correct, except for the
unknown fingerprint witness. Fitt also declined the proffer of a
state witness list under the mistaken belief that he already
knew about all of the state witnesses.
Through conversations with the
prosecutor, Fitt was aware that eyewitnesses would place
Mulligan in Columbus, Georgia on the day of the crime. Fitt knew
he would have to discredit these eyewitness accounts, and he
attempted to do so at trial by emphasizing the possibility that
their memories had faded in the two-year delay before trial. He
also was aware that Helms would testify under a grant of
immunity, so he prepared cross-examination to demonstrate that
Helms' story was self-serving and suspicious.
This cross-examination, while
unsuccessful, was not insubstantial. Although it would have been
wiser to interview each of the state's eyewitnesses and Helms,
we cannot conclude on this record that his conversations with
the prosecutor and his prepared cross-examination falls below
the "reasonable substantial investigation" standard. Strickland
v. Washington, 466 U.S. at ----, 104 S.Ct. at 2061, 80 L.Ed.2d
The refusal of the state's
witness list and the consequent failure to know about the
fingerprint testimony are more troubling. But even this evidence
was within the scope of the state's case as Fitt had come to
understand it. He knew there would be strong evidence adduced
that Mulligan was in Columbus, and he planned to attack that
evidence. While the fingerprint evidence was a surprise at trial,
its additional effect on an already strong state case was not
Fitt was able to cross-examine
Officer Rice and he argued to the jury that the print was
unclear. While formally requesting the list would have been the
better practice, we note two additional factors which serve to
explain Fitt's action in not requesting the state's witness list.
First, Fitt had a reasonable understanding that his
conversations with the prosecutor had revealed all material
witnesses. Second, in light of the alibi asserted so vehemently
by Mulligan, which was corroborated by Mulligan's rejection of
the plea bargain and by the convincing support from the several
witnesses interviewed in Beaufort, we cannot conclude that Fitt
was unreasonable in believing the alibi; thus, his complacency
in not anticipating a fingerprint witness was not unreasonable.
We conclude, therefore, that
Fitt's pre-trial investigation was not ineffective. He
thoroughly investigated the South Carolina witnesses and became
aware of the boundaries of the state's case. After his attempts
to shake his client's uncontroverted reliance on the alibi were
rebuffed, his failure to explore further the particulars of the
state's evidence did not violate Mulligan's Sixth Amendment
rights under the circumstances of this case.
This conclusion is consistent
with other cases from this circuit. In Kemp v. Leggett, 635 F.2d
453 (5th Cir. Unit B Jan. 27, 1981), an inexperienced trial
counsel was found ineffective because he turned down a possible
plea bargain agreement without discussing it with his client,
failed to conduct a pretrial investigation, and refused to call
witnesses that the defendant had requested.
In this case, on the other
hand, Fitt, an experienced criminal defense attorney, made
substantial efforts to persuade Mulligan to accept a guilty plea,
did conduct a pretrial investigation, and attempted to put on
the defense requested by his client. In Gomez v. Beto, 462 F.2d
596 (5th Cir.1972), trial counsel was held ineffective because
he, unlike Fitt, explicitly refused to follow his client's
instructions in preparing his defense.
In Gaines v. Hopper, 575 F.2d
1147 (5th Cir.1978), counsel was held ineffective for presenting
an incredible alibi he had not even investigated when his
client's own statements strongly suggested a possibly
exculpatory defense that could have been corroborated by
witnesses readily available for purposes of investigation. By
blindly persisting with an incredible alibi that he had not
attempted to either challenge or corroborate, trial counsel
deprived his client of a clearly favorable defense at trial.
In this case, Fitt did what he
could to convince his client of the weakness of the "family
alibi" and, when such a tactic did not work, he sought
corroboration, which he found to be very believable. He did not
overlook any evidence favorable to his client. Our conclusion
that Fitt's pretrial investigation was not ineffective is
supported by the foregoing cases.
3. Failure to Present Evidence
at Sentencing Stage: Fitt presented no evidence at the
sentencing phase of Mulligan's trial, relying instead on an
emotional appeal against the death penalty in his closing
argument. Mulligan claims that this lack of evidence stemmed
from an insufficient pre-trial investigation, i.e., that Fitt
put on no evidence at sentencing because he had not prepared to
do so. This claim is incorrect.
Fitt planned to use the same
family members at the sentencing phase who were going to
corroborate Mulligan's alibi. While Mulligan now claims that
other witnesses were available, he does not dispute that these
family members were appropriate people to give sentencing
testimony. Nor does he claim that particular substantive areas
of mitigating evidence were overlooked in focusing on these
Following the admission by
Mulligan that he had lied, Fitt began to evaluate the effect of
this fairly obvious attempt at perjury on his sentencing phase
presentation. He worried that the indication that Mulligan's
family would lie for their son (communicated in the opening
statement) would damage their credibility before the jury. He
then made a strategic choice not to put the family members on at
sentencing. This choice, although certainly a very difficult one
in the context of the trial, was deemed to be a reasonable
strategic choice by the court below. That finding is not clearly
erroneous. See Washington v. Strickland, 693 F.2d at 1256 n. 23.
For the foregoing reasons, we
conclude that Fitt's representation did not fall below the
reasonably effective level required by the Sixth and Fourteenth
III. PROSECUTORIAL ARGUMENT
Mulligan's claim that the
guilt phase of his trial was rendered fundamentally unfair by
the prosecutor's closing argument warrants little discussion.
The asserted infractions in the prosecutor's argument were
either not improper at all or relatively nonprejudicial. In
light of the foregoing and the overwhelming evidence of guilt,
we have no difficulty concluding that there is no merit to
Mulligan's challenge to the prosecutor's argument in the guilt
Mulligan also asserts that the
prosecutor's closing argument in the sentencing phase was so
improper as to render his sentencing proceedings fundamentally
unfair. The prosecutor in the instant case also prosecuted
Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) (en banc). The
challenged argument here is so similar to the argument in Brooks
that we conclude that the severity of the several improper
aspects of the argument is almost identical to that in Brooks.
Although a prosecutorial
misconduct challenge requires a fact sensitive inquiry, and for
that reason prior cases will very seldom be squarely in point,
we conclude that this case is controlled by Brooks. Accordingly,
without need for further discussion, we reject Mulligan's claim
for relief based on the prosecutor's argument in the sentencing
For the foregoing reasons, the
judgment of the district court is